Wednesday, December 2, 2020
Next to Joni Mitchell, Robert Hillman is now my favorite authority on the parol evidence rule (PER). Call it confirmation bias, but he says everything I've ever thought about the PER, and he gives my favorite explanation for it. In short, PER cases come out the same under the CISG and UCC, even though they seem to take divergent approaches on the PER.
Why? Because regardless of applicable law, courts aim to get at the intent of the parties, and so they look at parol evidence whenever the evidence helps them achieve that goal. I had reached this conclusion by Fingerspitzengefuehl, but now, thanks to Professor Hillman's erudition, I can back up my instinct with evidence that no court would exclude.
Here's the abstract, with download available on SSRN
This article, a contribution to a book celebrating forty years of the United Nations Convention on Contracts for the International Sale of Goods (CISG), compares two seemingly opposite rules, one adopting the parol evidence rule (PER) and one disposing of it. Under the Uniform Commercial Code (UCC), which governs domestic United States sales of goods, the PER bars the admission of evidence of promises and representations that contradict a subsequent written contract intended to be complete. The CISG would admit such evidence because of the absence of a PER. The UCC and CISG’s rules are thus polar opposites. Still, the thesis of this article is that U.S. courts that must decide whether such evidence is admissible often can reach the same result under either rule. This is because an important goal of both CISG and the UCC is to enforce the parties’ intentions. The discussion here predicts that U.S. courts will focus on this policy, and when the evidence persuasively furthers the goal of enforcing intentions, the courts will admit the evidence, and when not they will discard it. And this process will occur regardless of whether the applicable law is CISG or the UCC.